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TMI Blog2000 (2) TMI 89X X X X Extracts X X X X X X X X Extracts X X X X ..... the Government Gazette though the Gazette in spite of having been published was not available to be seen by the persons affected when criminal consequences are sought to be inflicted---is a question which should in my opinion be left open to be gone into in an appropriate case. Non-availability of the Gazette carrying the notification may provide foundation for a defence plea of innocence where mens rea is an ingredient of offence committed by breach of notification. Where mens rea is not an ingredient, want of circulation of the Gazette may still be a reason for leniency in punishment. These are the questions which need to be left open. - Civil Appeal No. 6071 of 1999, W.P. No. 535 of 1987 - - - Dated:- 22-2-2000 - Judge(s) : B. N. KIRPAL., M. B. SHAH., R. C. LAHOTI K.N. Bhat, C.S. Vaidyanathan, Additional Solicitors General (Hemant Sharma, V.K. Verma, M. Gaurishankar Murthi and P. Parmeswaran, Advocates, with them), for the petitioners. S.L. Aneja, Advocate, for the respondent. JUDGMENT [The judgment of B. N. KIRPAL and M. B. SHAH JJ. was delivered by M. B. SHAH J. R. C. LAHOTI J. delivered a separate concurring judgment.] M. B. SHAH J.-- -A two-judge Ben ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lic interest so to do, hereby makes the following amendment in the notification of the Government of India, in the Department of Revenue and Banking, No. 129/76-Customs, dated the 2nd August, 1976, namely :--- In the said notification, for the words 'from the whole of the duty of customs leviable thereon which is specified in the said First Schedule' the words 'from the payment of so much of that portion of the duty of customs which is specified in the said First Schedule as is in excess of twenty five per cent. ad valorem' shall be substituted." The contention is---the aforesaid notification was not made available to the public at large and, therefore, on the basis of the said notification customs duty cannot be levied. Learned counsel for the appellant relied upon the decision in Pankaj Jain Agencies v. Union of India [1994] 5 SCC 198 and learned counsel for the respondent-importer has relied upon the decision in Collector of Central Excise v. New Tobacco Co. [1998] 109 STC 376 (SC) ; [1998] 8 SCC 250 in support of their respective contentions. In Pankaj Jain Agencies v. Union of India [1994] 5 SCC 198, this court considered a similar contention with regard to the exemption ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt has specifically held that if publication is through a Gazette then mere printing of it in the Gazette would not be enough unless the Gazette containing the notification is made available to the public. The court after considering the contentions has held as under : "Our attention was also drawn to the decisions of this court in Pankaj Jain Agencies v. Union India [1994] 5 SCC 198 and I. T. C. Limited v. Collector o f Central Excise, Bombay [1996] 5 SCC 538 but they are not helpful in deciding the question that arises in these cases. We hold that a Central excise notification can be said to have been published, except when it is provided otherwise, when it is so issued as to make it known to the public. It would be a proper publication if it is published in such a manner that persons can, if they are so interested, acquaint themselves with its contents. If publication is through a Gazette then mere printing of it in the Gazette would not be enough. Unless the Gazette containing the notification is made available to the public, the notification cannot be said to have been duly published." In Garware Nylons Ltd. v. Collector of Customs and Central Excise, Pune [1998] 8 SCC 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er publication is contemplated. The additional requirement is that under section 159 such notification is required to be laid before each House of Parliament for a period of thirty days as prescribed therein. Hence, in our view Mayer Hans George [1965] 1 SCR 123 ; AIR 1965 SC 722 which is followed in Pankaj Jain Agencies' case [1994] 5 SCC 198 represents the correct exposition of law and the notification under section 25 of the Customs Act, 1962 would come into operation as soon as it is published in the Gazette of India, i.e., the date of publication of the Gazette. Apart from prescribed requirement under section 25, the usual mode of bringing into operation such notification followed since years in this country is its publication in the Official Gazette and there is no reason to depart from the same by laying down additional requirement. In the case of Mayer Hans George [1965] 1 SCR 123 ; AIR 1965 SC 722, it was contended that the notification under section 8 of the Foreign Exchange Regulation Act, 1947 of the Reserve Bank of India could not be deemed to have been in force and operation merely from the date of issue or publication in the Gazette. It would have effect only from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... There was no precedent for it, and indeed a decision, Jones v. Robson [1901] 1 KB 673 which, though not on all fours, militated strongly against the judge's conclusion, was not cited ; nor did the judge attempt to define how and when delegated legislation 'became known'. Both arguments and judgment are very brief. The decision has always been regarded as very doubtful, but it never came under review by a higher court." The court also held that : "It is obvious that for an Indian law to operate and be effective in the territory where it operates, viz., the territory of India it is not necessary that it should either be published or be made known outside the country. Even if, therefore, the view enunciated by Bailhache J. is taken to be correct, it would be apparent that the test to find out effective publication would be publication in India, not outside India so as to bring it to the notice of everyone who intends to pass through India. It was 'published' and made known in India by publication in the Gazette on the 24th November and the ignorance of it by the respondent who is la foreigner is, in our opinion wholly irrelevant." The court further observed : ". . . but where ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tobacco Co.'s case [1998] 109 STC 376 (SC) [1998] 8 SCC 250, the court relied on the decision in B. K Srinivasan v. State of Karnataka [1987] 1 SCC 658. In that case (in para 15) after considering various contentions, the court specifically held that where the parent statute prescribes the mode of publication or promulgation that mode must be followed. Where the parent statute is silent, but the subordinate legislation itself prescribes the manner of publication, such a mode of publication may be sufficient, if reasonable. From the aforesaid observations, it is plain and clear that the decision in B. K. Srinivasan v. State a Karnataka [1987] 1 SCC 658 also reiterates that the notification will take effect only when it is published through the customarily recognised official channel, namely, the official Gazette. We also agree with the reasons recorded in Mayer Hans George [1965] 1 SCR 123 AIR 1965 SC 722 and hold that notification under section 25 of the Customs Act would come into operation as soon as it is published in the Official Gazette and no further publication is required. Hence, the decision rendered in Pankaj Jain Agencies' case [1994] 5 SCC 198 represents the correct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r Notification No. 40/87-Cus., dated February 4, 1987. There shall be no order as to costs. R. C. LAHOTI J.---I have gone through the judgment proposed by my learned Brother M. B. Shah J. I entirely agree with the reasoning given and the ultimate conclusion arrived at by my learned Brother. However, I would like to place on record my opinion that the view so taken needs to be confined in its application to civil liability only and cannot be made a rule of universal application. Pankaj Agencies v., Union of India [1994] 5 SCC 198 and B. K. Srinivasan v. State of Karnataka [1987] 1 SCC 658---both are the cases where civil liability was sought to be imposed on the person proceeded against. There may be cases where on account of breach of a rule made or notification issued in exercise of delegated power to legislate, a person may incur criminal liability. Such cases can again be divided into two classes : (i) where mens rea is an essential ingredient of the offence ; (ii) where expressly or by necessary implication mens rea is ruled out as an ingredient of the offence. State of Maharashtra v. Mayer Hans George [1965] 1 SCR 123 ; AIR 1965 SC 722 is a case of criminal liability inc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... act must both concur to constitute the crime). The general rule is that there must be mind at fault before there can be a crime. Whether or not mens rea is an essential ingredient of an offence would depend on the object and purpose of a statute and the phraseology employed by the Legislature in defining the offence. The doctrine that mens rea is an essential ingredient in every offence has three recognised exceptions : (i) cases not criminal in any real sense but which in the public interest are prohibited under a penalty ; (ii) public nuisance ; and (iii) cases criminal in form but which are really only a summary mode of enforcing a civil right (see Sherras v. De Rutzen [1895] 1 QB 918, 922, also see Nathulal v. State of Madhya Pradesh, AIR 1966 SC 43 and observations of K. Subba Rao J. in his dissenting opinion in State of Maharashtra v. Mayer Hans George [1965] 1 SCR 123 ; AIR 1965 SC 722). Vide paragraph 16, K. Subba Rao J. has given an illustration. An aeroplane in which a person with gold on his body is travelling may have a forced landing in India and yet he would be liable to be punished with a jail term extending to two years. The case at hand is one where through the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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